Johnson v. Springfield Traction Co.

• Decision Date: 12 February 1914
• Citation: 163 S.W. 896,178 Mo. App. 445
• Parties: JOHNSON v. SPRINGFIELD TRACTION CO.
• Court: Missouri Court of Appeals

163 S.W. 896

178 Mo. App. 445

JOHNSON v. SPRINGFIELD TRACTION CO.

Springfield Court of Appeals. Missouri.

February 12, 1914.

1. DEATH (§ 76) — CAUSE OF DEATH — SUFFICIENCY OF EVIDENCE.

In an action against a street railroad company for the negligent killing of plaintiff's husband in a collision between a street car and a vehicle, evidence held to show that the injuries received by the husband in the collision were the cause of his death.

2. APPEAL AND ERROR (§ 232)—PRESENTATION BELOW—OBJECTIONS TO EVIDENCE.

In order to object on appeal to questions to a physician as to what caused meningitis in the particular case, answered by stating that decedent's injuries caused the disease, on the ground that the questions called for a conclusion of fact by the expert, that particular objection should have been made at trial, and an objection that "he can state the facts just as he found them there" was insufficient.

3. STREET RAILROADS (§ 90) — INJURIES TO DRIVER OF TEAM—NEGLIGENCE.

Error in judgment by a motorman in believing that he could safely pass decedent's wagon, which led to a collision, would not prevent the motorman from being charged with negligence, especially where he had a clear view of decedent in time to have averted the accident, but failed to do so.

4. DEATH (§ 96)—ACTION—RECOVERY—PENALTY.

A recovery under Rev. St. 1909, § 5425, for negligent death resulting from the negligence of a street car employé, necessarily involves some penalty; the statute expressly providing that the corporation shall "forfeit and pay as a penalty for every such person so dying the sum of not less than $2,000 and not exceeding $10,000, in the discretion of the jury."

5. DEATH (§ 96)—DAMAGES—PENALTY.

Rev. St. 1909, § 5425, provides that whenever any person shall die from injury caused by the negligence of any employé while running a street car, etc., the corporation shall "forfeit and pay as a penalty for every such person * * * so dying the sum of not less than $2,000 and not exceeding $10,000, in the discretion of the jury," which may be recovered by the husband or wife of decedent, etc. Held, that the penalty allowed in an action under the statute cannot exceed $2,000, any additional amount being compensatory, so that it is error to instruct that upon finding for plaintiff the verdict should allow her "such sum not less than $2,000 and not exceeding $10,000 as in your discretion should be awarded to her and inflicted upon the defendant as a penalty" for the death of plaintiff's husband.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by Martha A. Johnson against the Springfield Traction Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial, unless plaintiff files a remittitur.

Delaney & Delaney, of Springfield, for appellant. George Pepperdine and Patterson & Patterson, all of Springfield, for respondent.

FARRINGTON, J.

This suit was brought by the widow of James Johnson against the Springfield Traction Company under section 5425, R. S. 1909, for wrongfully and negligently killing her husband in a collision of one of its street cars and a vehicle (or rather a kitchen safe in a vehicle) in which deceased was riding. A judgment for $5,600 is appealed from.

The facts surrounding the collision and bearing on the question of defendant's negligence were at this term of court passed upon in an opinion prepared by Judge Sturgis in the case of Martha A. Johnson v. Springfield Traction Co., 161 S. W. 1193. A full statement of such facts is set forth in that opinion; the only difference being that in that case Mrs. Johnson sued for her personal injuries sustained in the same collision, whereas in this she sues under the death statute for the loss of her husband. Many of the instructions involved in this case were considered in the other case, and as that opinion, together with the files in the case, passed in review before the Supreme Court upon an application for a writ of certiorari, and the writ was denied, we are reassured that the questions touching the points in that case which are also in controversy here have been correctly decided and will therefore receive no further consideration in this opinion.

There are three questions raised by appellant that were not in the other case, and they are of such importance as to require very careful consideration. The first to be discussed relates to the contention that the plaintiff failed to show that the death of James Johnson was caused by the injury received in the collision. The second question concerns defendant's contention that it cannot be held for the error of judgment of its motorman in thinking he could pass with his car safely. Lastly, we will discuss the instructions on the measure of damages.

The record discloses that the collision occurred on September 2, 1912, and that Johnson died on September 12, 1912. The uncontroverted evidence is that the deceased was unconscious, or possibly in a semiunconscious condition, when he was lifted from the street and taken to the hospital, and that he remained so for at least two days. Some four or five days after the collision, erysipelas developed, and on the tenth day meningitis manifested itself, and this was the day before he died. The injuries were in the shoulder blade and on the head; the injury on the head causing immediately the unconscious condition. Dr. Evans, who was the first physician on the ground, and who attended Johnson in the hospital, was first asked by an attorney for the plaintiff: "Now, I will get you to state what in your opinion as a physician caused Mr. Johnson's death." This question was objected to by counsel for defendant and the objection sustained. He was then asked by plaintiff's counsel the following question: "I will get you to state whether or not, if a person receiving such an injury as Mr. Johnson received there and had an injury on his head and other injuries that you speak of, I will ask you whether or not that might produce death." Counsel for defendant objected "because the gentleman doesn't fully cover the case and because the witness is not qualified. He has testified he was there only part of the time and was not there at the time of death." The objection being overruled, the witness answered: "A person of his age, it would." Doctor Fulbright testified that he saw Mr. Johnson the day the injury occurred very soon after being taken to the hospital, and subsequently saw him several times before his death; that he attended the patient during the ten days, and he never rallied thoroughly from unconsciousness; that erysipelas developed in four or five days; and that this disease could bring on meningitis, which he said was the disease causing Johnson's death.

The evidence all tends to show that Johnson died as a result of the injuries received in the collision. Indeed, there is no fact proven or theory advanced by the defendant denying that Johnson was injured and that he received the injuries testified to by plaintiff's witnesses, or that the erysipelas, meningitis, and death were brought on by any intervening cause. There is uncontroverted testimony in the record that erysipelas is an infectious disease, and that it can originate only through an abrasion, and that it is impossible to tell just when the wound or abrasion becomes infected with the erysipelas. Therefore defendant insists that the physician having sworn that Johnson died from meningitis, and that the form of meningitis from which he died may come from erysipelas, and that it is impossible to tell when the infection causing the erysipelas entered the wound, there is a failure to connect the death with the wounds or abrasions received in the collision, and that defendant could not reasonably expect erysipelas and meningitis to follow even though its servants were negligent in causing the wounds or abrasions. This is fallacious, as the testimony all shows that erysipelas manifests itself only through a wound or abrasion. It is therefore readily seen that, if this is the only way in which an injured person may be infected with erysipelas, those who cause such wounds or abrasions may expect that erysipelas will or may follow as a natural consequence of such injury. There is no showing by the defendant that the deceased at any time prior to the collision had erysipelas, or that he received any wound or was subjected to any condition other than the wound which he received in the collision that would bring about such infectious disease. This testimony, coupled with the testimony of Dr. Evans that the results which actually followed might follow such an injury, and that of Dr. Fulbright, the other attending physician, that they did follow, leaves the question beyond all cavil that the injuries received in the collision caused the death of plaintiff's husband.

Objection was made to the form of questions put to Dr. Fulbright. The questions, answers, and objections bearing on this point are as follows: "Q. You have deaths from meningitis and erysipelas? A. Yes, sir. Q. In this case, what was the cause of his death? A. The cause of his death was meningitis. Q. What did that come from, in your opinion? By Mr. Delaney: We object to that. It is stating a fact." The objection was overruled, but the witness did not answer. Again quoting: "Q. What, in your opinion, caused meningitis in this case? By Mr. Delaney: We object to that. He can state the facts just as he found them there." The objection was overruled, and the witness answered: "The injury, I would say, caused meningitis. Q. The injury he received? A. Yes, sir."

It is insisted that the form of the questions was improper and contrary to the law in this state governing the introduction of expert witnesses and the form of hypothetical questions. The law on this subject has been recently expounded in the following cases: State v. Hyde, 234 Mo. loc. cit. 251-253, 136 S. W. 316, Ann. Cas. 1912D, 191; Castanie v....